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Funeral Protest Tests Free-Speech Limits at Top Court

Fred Phelps
Fred Phelps Jr., a member of Westboro Baptist Church from Topeka Kansas, walks around the U.S. Supreme Court with anti-gay banners on Oct. 6, 2010 in Washington, D.C. Photographer: Kimihiro Hoshino/AFP/Getty Images

The U.S. Supreme Court grappled with the limits of the Constitution’s free-speech guarantee, debating whether it protects protesters who go to military funerals to proclaim that God is punishing the country by killing soldiers.

Hearing arguments in Washington today, the justices searched for a possible way to reinstate a $5 million award against a Kansas minister and his two daughters for disrupting the Maryland funeral of a Marine who died in Iraq.

The justices gave no clear indication which way they would rule. They repeatedly pressed Margie Phelps, the minister’s lawyer and daughter, to agree that a protester in some cases can be sued for directing offensive speech at a private individual.

“Your position is that you can follow any citizen around at any point,” Justice Anthony Kennedy told Phelps at one point.

The lawyer’s father, Fred W. Phelps Sr., is the head of the 70-member Westboro Baptist Church, a congregation made up mostly of his relatives. Phelps and his followers have traveled to hundreds of military funerals to proclaim that God is angry over the country’s acceptance of homosexuality, bearing signs that say, “Thank God for Dead Soldiers,” “Pope in hell,” “God Hates the USA” and “Fag troops.”

As members of the church demonstrated on the sidewalk in front of the court, Margie Phelps told the justices that the protesters were exempt from suit because they had “entered an ongoing, extensive public discussion.” She described the congregation as “a little church where the servants of God are found.”

Other Demonstrations

Margie Phelps wasn’t at the Maryland protest but has taken part in other demonstrations.

Fred Phelps and two other daughters are being sued by Albert Snyder, whose only son, Lance Corporal Matthew Snyder, died in Iraq’s Anbar Province in 2006.

Phelps and six relatives staged their demonstration 1,000 feet away from the Westminster, Maryland, Catholic church where the funeral was held. The Westboro website later featured an “epic” that said Snyder and his ex-wife “taught Matthew to defy his creator” and “raised him for the devil.”

Snyder says he didn’t see the demonstrators that day, only the tops of their signs. Even so, he says the Phelpses made their presence felt, forcing a massive police presence that included a SWAT team and a mobile command center.

Emotional Distress

Snyder sued Fred Phelps and two of his other daughters for intentional infliction of emotional distress. A jury awarded Snyder $10.9 million, an amount later reduced by a trial judge. A federal appeals court in Richmond, Virginia, then threw out the entire award.

Phelps today drew her strongest support from Justice Ruth Bader Ginsburg, who said the demonstration would have been legal under a Maryland law that was enacted later to restrict protests near funerals.

“Nothing out of compliance with that statute was done here,” Ginsburg said.

Phelps got a tougher reception from Justice Samuel Alito, who likened a funeral to a person’s home. The high court has said that protests can be limited near a home because the residents are a “captive audience.”

“Why aren’t the members of the families of the deceased a captive audience at the funeral?” Alito asked.

Alito asked Phelps whether a grandmother of a dead soldier could sue if she was berated by a heckler at the bus stop after visiting her grandson’s grave. He later asked whether the First Amendment would shield someone who confronted a black person with the contention that blacks are inferior.

Some Protection

Phelps said the First Amendment might provide some protection because “the issue of race is matter of public concern.” She said a central issue was whether the targeted person had made public comments about the issue.

Snyder’s lawyer, Sean Summers, urged the court to put limits on the right to free speech at private funerals.

“If ever context is going to matter, it has to matter in the context of a funeral,” he said.

The case is the second argued before the newest justice, Elena Kagan, a former law professor and dean whose academic focus included the First Amendment. She directed questions to both sides, asking Summers whether Snyder could have sued had the protesters simply held signs opposing the war in Iraq.

Among those backing Snyder are 42 U.S. senators, led by Democratic Majority Leader Harry Reid of Nevada and Republican Minority Leader Mitch McConnell of Kentucky.

The American Civil Liberties Union and 21 news organizations including Bloomberg LP, the parent of Bloomberg News, are urging rejection of the award.

The case, which the court will decide by July. is Snyder v. Phelps, 09-751.

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